Minister asked to keep babies out of offshore detention centres

MARK COLVIN: A lawyer representing asylum seekers who've given birth in Australia has written to the Immigration Minister Scott Morrison asking him to rule out sending the babies to immigration detention centres offshore.

The lawyer has just returned from Christmas Island, where he talked to the parents of 24 babies born in Australia. He says the families have reason to fear that they are about to be sent to Australia's immigration detention centre in Nauru.

The Government says its policy is to send families to Nauru for processing and any exemptions will only encourage people smugglers to send more women and children to Australia.

Simon Lauder reports.

SIMON LAUDER: Jacob Varghese from Maurice Blackburn lawyers says the case of a boy who was born to asylum seekers in Brisbane has prompted other parents to contact him about their own babies.

JACOB VARGHESE: That's the Baby Ferouz case which is in the High Court at the moment; an issue has arisen about the status of that baby in relation to whether he is an unauthorised maritime arrival within the meaning of the Migration Act.

And since running that case, we were contacted by parents of other babies, mostly on Christmas Island, and on the weekend a colleague and I went up to Christmas Island to meet these parents.

SIMON LAUDER: Mr Varghese says he's now written to the Immigration Minister Scott Morrison asking him to rule out transferring those babies to Nauru until that High Court case is resolved.

JACOB VARGHESE: We're acting for 24 babies on Christmas Island, and there's another two in Melbourne who are in a similar situation.

SIMON LAUDER: So their mothers were pregnant when they came here seeking asylum, and they were taken off Christmas Island to the mainland to give birth?

JACOB VARGHESE: That's right. All of them were taken off Christmas Island. There's actually not been a baby born on Christmas Island for years, because they don't have the medical services to provide that sort of obstetric service.

SIMON LAUDER: And you say you're acting on behalf of those families? What action are you taking?

JACOB VARGHESE: Well at this stage we're writing to the Minister, and we hope that the Government will be reasonable and say, yes there is a real issue here about whether they are unauthorised maritime arrivals within the meaning of the Act, and agree to not do anything to these people in terms of moving them overseas until that issue has been tested by the High Court.

SIMON LAUDER: What is the question, there? Is it whether they arrived in utero, essentially, on a boat, or whether they arrived when they were born?

JACOB VARGHESE: Well, the Australian law generally recognises a person coming into existence on the day they're born. The question here is whether or not they arrive by sea because of some strange technical language in the Act. So the Act says that you're an unauthorised maritime arrival if you arrive by sea without a visa. It then goes on to say that you arrive by sea if you arrive by any means other than an aeroplane.

What it looks like is that Parliament just didn't turn its mind to that third category of people - people born here - and we say that they plainly didn't arrive by sea, and therefore there's no authority to send them overseas.

SIMON LAUDER: Wouldn't it be better to wait for the outcome of the High Court case, if this is a matter that the High Court is considering, before raising it with the Minister?

JACOB VARGHESE: No, because the families are concerned that they could be sent to Nauru at any time. The people we spoke to told us that they wake up in the morning and find and empty cabin where their neighbours used to be, so as you can understand, they're all very concerned that they could be sent any day.

SIMON LAUDER: So you're obviously looking for a clear statement of intentions from the Government. What happens if you don't get that?

JACOB VARGHESE: We've asked the Government to get back to us by 4pm tomorrow, and if the Government can't give us an answer, we'll have to contemplate an urgent court application.

SIMON LAUDER: If it's established that the babies are not unauthorised maritime arrivals, it wouldn't guarantee them any right to Australian citizenship. They would only have a claim to citizenship if they are stateless.

Michaela Byers is a leading immigration lawyer.

MICHAELA BYERS: So there's still a barrier there, whether they're unauthorised maritime arrivals or not, and I've had that barrier before with people that have… the parents have come with visas and then become unlawful, and had children in Australia, they still weren't immigration cleared…

SIMON LAUDER: And what usually happens to children in that scenario?

MICHAELA BYERS: Well, they're treated as unlawful non-citizens, which is basically a very similar status to an unauthorised maritime arrival.

SIMON LAUDER: In a statement the Immigration Minister's office says the Government's policy is to transfer illegal boat arrivals to offshore processing centres and families are transferred to Nauru. The statement says creating exemptions for offshore processing will only create dangerous incentives for people smugglers to fill boats with women and children.